Contracts, Termination, Repudiation and Rescission

[never-in-doubt]

Re: Contracts, Termination, Repudiation and Rescission

Well PT's reputation does proceed him, he ignites a tiny spark and well the forest sets ablaze.

Great judgment, great result, and best of all a great guy.......that's our PT LOL.

Niddy's English lesson - it should be "reputation precedes"

pmsl

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

Any answers on what does make abuse of process?

[volvodriver]

Re: Contracts, Termination, Repudiation and Rescission

And will you lot stop bickering it makes it very hard to follow the actual dicsussion on the subject.

Ame

I hope I'm not included amongst the bickerers.

I made it very clear that I dont know, very clear that I have no legal knowledge but that I genuinely wanted to understand.

I also like people to say what they mean, and mean what they say.

IMVHO if the standard of debate and comprehension of written English seen on this thread and others here and on CAG is what LIPs take into a courtroom, there is no wonder so many lose.

Perhaps in some small way I could help if folk would read more carefully and stop shooting from the hip.

A bit of precision goes a long, long way.

Vdr

ps

I'm still awaiting the answer to the 64000$ question I asked a while ago. I suppose (dangerous) that there being no answer means there is not one.

Vdr

[Amethyst]

Re: Contracts, Termination, Repudiation and Rescission

Hmmmm, thinking on Volvo's point. If the court ordered a valid DN be issued and it wasn't then the claim should be struck out for not complying with judges orders (unless v good explanation)...however if the court simply stayed the case to allow the parties to get their 'ducks in a row' (who bought that saying over here anyway !) and left them at liberty to apply to pick things up and amend POCs then I don't think it could be construed as an abuse of process if they didn't issue a valid DN. However a second invalid DN is unlikely to attract similar leniancy from the judge and it is likely to be struck for having no prospect of success, but statute wise I think they could continue reissuing until they got it right but they couldnt ever terminate and the debtor would have to not be prejudiced by their crapness (unlikely I think) for them to continue indefinately and still succeed in court.

The Harrison judgment does show it is an idea, even if just to be on the right side of the judge in court, to make what payments you can even if just token. I do though understand some people for whatever reason prefer to stop and force court action for enforcement to enable a payment plan to be set and terms for interest etc to be set in stone.

(VD I think it wasn't clear that you agreed that a DN be reissued and just wondered on the issue of second and third and fourth faulty DNs being reissued till they got it right (assuming I have read you correctly that is lol) )I think the truth of the matter is we don't know - it hasn't been tested in court as far as I know but we do know that cpr and case law shows non compliance with Judges orders for entering documentation can be cause for a strike)

[cymruambyth]

Re: Contracts, Termination, Repudiation and Rescission

Ohay, I know the termination question is alive and kicking, but how can a DN that is defective be reissued when the account has been assigned to a DCA? Does the DCA have to send a valid DN? What happens about an account that has been closed (for tax purposes) following the defctive DN and then sold?

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

Hi Guys,

"IMVHO if the standard of debate and comprehension of written English seen on this thread and others here and on CAG is what LIPs take into a courtroom, there is no wonder so many lose."

This I wholeheartedly agree with Volvodriver. Unfortunately this is making life much more difficult for the professionals who are prepared to help us mere mortals as well as the cards are slowly stacking against us.

On the defective DN issue, I cannot see any justice whatsoever in allowing a creditor to keep on going back to court over and over again until he gets the decision he wants ON THE SAME FACTS other than a piece of paper which HE should have issued correctly in the very first place as is required of him in Statute Law.

I would have thought that res judicata would have prevented this. Only murder allows for for the double jeopardy rule to be relaxed elsewhere and the burden of proof here is "beyond reasonable doubt" The very same posters have argued in other places that proof required in these cases is only on balance of probabilities i.e. 51%. An inaccurate, defective DN is proof absolute that the creditor has "screwed up" and has breached the Statutes governing its behaviour.

Perhaps we should also be looking at principles and fundamentals when formulating argument rather dissecting an individual word and the nuances it contains.

regards
garlok




Read more at: Contracts, Termination, Repudiation and Rescission - Page 16 - Legal Beagles Consumer Forum

[volvodriver]

Re: Contracts, Termination, Repudiation and Rescission

Hi Guys,

"IMVHO if the standard of debate and comprehension of written English seen on this thread and others here and on CAG is what LIPs take into a courtroom, there is no wonder so many lose."

This I wholeheartedly agree with Volvodriver. Unfortunately this is making life much more difficult for the professionals who are prepared to help us mere mortals as well as the cards are slowly stacking against us.

On the defective DN issue, I cannot see any justice whatsoever in allowing a creditor to keep on going back to court over and over again until he gets the decision he wants ON THE SAME FACTS other than a piece of paper which HE should have issued correctly in the very first place as is required of him in Statute Law.

I would have thought that res judicata would have prevented this. Only murder allows for for the double jeopardy rule to be relaxed elsewhere and the burden of proof here is "beyond reasonable doubt" The very same posters have argued in other places that proof required in these cases is only on balance of probabilities i.e. 51%. An inaccurate, defective DN is proof absolute that the creditor has "screwed up" and has breached the Statutes governing its behaviour.

Perhaps we should also be looking at principles and fundamentals when formulating argument rather dissecting an individual word and the nuances it contains.

regards
garlok






Read more at: Contracts, Termination, Repudiation and Rescission - Page 16 - Legal Beagles Consumer Forum

Yes I agree with you broad approach, the problem is that lawers have agued over what "should" means when in the context its perfectly obvious.

I do think we need to be very precise and try to understand the DN and termination issue - I note that there are several unanswered questions including my own. This probably means that we wont know until a clever DCA twists common English in court.

If a clever solicitor sees words like "often" you can bet they will be all over it like a pox rash seeking to make it advantageous to them.

A return to the basics is required, regrettably that needs to come from the judiciary, and I cant see that happening.

We therefore must do what we can here, if others will let us.

Vdr

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

Yes I agree with you broad approach, the problem is that lawers have agued over what "should" means when in the context its perfectly obvious.

I do think we need to be very precise and try to understand the DN and termination issue - I note that there are several unanswered questions including my own. This probably means that we wont know until a clever DCA twists common English in court.

If a clever solicitor sees words like "often" you can bet they will be all over it like a pox rash seeking to make it advantageous to them.

A return to the basics is required, regrettably that needs to come from the judiciary, and I cant see that happening.

We therefore must do what we can here, if others will let us.

Vdr

Hi

Yes "should" as reffered to in the CPR relating to the production of documents, i presumer that is what you mean, dont think it has been argued over though, could be wrong.

AS far the the word often is concerned who would argue ove it? I suppose it would have to be the debtor when this case was used as a precedent by the
other side,"but HJH Chambers only said often sir not always" could work.

Doesnt seem likely though does it?

peter

[Amethyst]

Re: Contracts, Termination, Repudiation and Rescission

There was a big argument in one of the cases, the name of which escapes me, over the SHOULD, MUST, MAY etc words...I'll see if I can find it. Actually was it the Egg one? (edit: nope) I'll have a coffee and a ponder but I'm pretty sure there was a bit of discussion over those words in the CCA in one of the HC cases.

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

There was a big argument in one of the cases, the name of which escapes me, over the SHOULD, MUST, MAY etc words...I'll see if I can find it. Actually was it the Egg one?

not bloody Egg

[Amethyst]

Re: Contracts, Termination, Repudiation and Rescission

lol, just had a quick reread of it and no it wasn't. thankfully

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

Hi Guys,

"IMVHO if the standard of debate and comprehension of written English seen on this thread and others here and on CAG is what LIPs take into a courtroom, there is no wonder so many lose."

This I wholeheartedly agree with Volvodriver. Unfortunately this is making life much more difficult for the professionals who are prepared to help us mere mortals as well as the cards are slowly stacking against us.

On the defective DN issue, I cannot see any justice whatsoever in allowing a creditor to keep on going back to court over and over again until he gets the decision he wants ON THE SAME FACTS other than a piece of paper which HE should have issued correctly in the very first place as is required of him in Statute Law.

I would have thought that res judicata would have prevented this. Only murder allows for for the double jeopardy rule to be relaxed elsewhere and the burden of proof here is "beyond reasonable doubt" The very same posters have argued in other places that proof required in these cases is only on balance of probabilities i.e. 51%. An inaccurate, defective DN is proof absolute that the creditor has "screwed up" and has breached the Statutes governing its behaviour.

Perhaps we should also be looking at principles and fundamentals when formulating argument rather dissecting an individual word and the nuances it contains.

regards
garlok




Read more at: Contracts, Termination, Repudiation and Rescission - Page 16 - Legal Beagles Consumer Forum

I dont really think the judge is going to mark you down on your grammar.

Re presenting a default is not representinhg with the same facts is it? isnt that the point.

Yes ballance of probablitites, fact i am affraid in cilil law.

Unfortunately the Act has no sanction for Screwing up a DN, and 173 says well you know the reat.

Yes no milleage in dissecting a single word.

Peter

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

Oxford English Dictionary definition of "should" is just one word:- "SHALL"

regards
garlok

[mystery1]

Re: Contracts, Termination, Repudiation and Rescission

Oxford English Dictionary definition of "should" is just one word:- "SHALL"

regards
garlok

Shall and it's effect is discussed fromPara 15

M1

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

Oxford English Dictionary definition of "should" is just one word:- "SHALL"

regards
garlok

Actually i find this quite interesting, the act is full of words that do not have their common meaning or at least have a special meaning within the act.

Take Should for instance not in the act but in one of the CPRs. The dictionarry definition stated is of course correct but within the CPR and i believe in law in general, it gives the instruction less weight than the word shall.
To the extent the instruction that a "document should accompany the poc" has a far less effective meaning than a "document shall" in law.

Words are always being re assigned meanings, look at the word "document" in the Carey hearing. When i was at school (yes i did go) a document was what was contained between the two covers of my folder, now apparently it is defined by its substance , so you can have half of it in a4 and the other half in a glosy leaflet as long as the contents relate.
Take "embodied " and ""made"both have particular meanings within the act that you would not find in any dictionarry there loads of examples.

Just ramblin
Peter